Over at the Missouri Record, Dave Roland criticizes the ethics bill SB 844 in front of the Missouri Senate, presenting five specific arguments as to why the bill is constitutionally untenable. He has this to say on the subject of the bill’s provisions to expand the scope and breadth of lobbyist registration and reporting requirements:
The current version of SB 844 would also expand section 105.470’s definition of “legislative lobbyist” to include “any natural person who acts for the purpose of attempting to influence the taking, passage, amendment, delay or defeat of any official action on any bill, resolution, amendment, nomination, appointment, report or any other action or any other matter pending or proposed in a legislative committee in either house of the general assembly, or in any matter which may be [italics added] the subject of action by the general assembly and in connection with such activity… attempts to influence any elected official other than an elected official who represents the legislative district where the person resides.” Under the currently-existing section 105.473, anyone who meets the definition of a lobbyist is required to file a registration form, pay a registration fee, and on a continuing basis provide to the designated authorities a significant array of information about the resources expended in their efforts to communicate with elected officials. The law treats a lobbyist’s failure to register with the state or keep current on the required reports as a criminal offense.
The Missouri Constitution, states that “every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject” (Article I, section 8), establishes the will of the people themselves to be the basis of all proper governmental authority (Article I, section 1), and guarantees the right to “apply to those invested with the power of government for redress of grievances” (Article I, section 9). By classifying as a “lobbyist” any person who expresses their political ideas to a legislator other than the one elected to represent them, the General Assembly would unconstitutionally stifle political speech and erect barriers that would prevent the people of this state from making their opinions known to those vested with the powers of government.
The impacts of this kind of legislation are real and represent a serious threat to the channels of communication between people and their government. I argue that the real problem with lobbyists is not that they exist, but rather that the cost of lobbying is too high. When the cost of communicating with your elected representatives is relatively high, only powerful vested interests are able to afford lobbying services. When the cost of this communication is relatively low, powerful vested interests have to compete for access and even privileged access becomes less meaningful as politicians gain leverage from being able to choose from more variable coalitions in a dynamic political landscape. In more direct terms, the cheaper it is to be a lobbyist, the more democratic the results of the political process. Lobbying in a sense is the act of proxying speech for dollars and dollars for votes; when votes are cheaper and the population is large and more heterogenous the influence of any single political coalition faces very real limits from competition.
And there is empirical evidence these kind of requirements exert a stifling effect on free speech. University of Missouri-Columbia economist Jeffrey Milyo describes the real ways of in a recent paper published through the Institute for Justice, “Mowing Down the Grassroots: How Grassroots Loobying Disclosure Suppresses Political Participation“:
Twenty‐two states explicitly include grassroots lobbying in the definition of lobbying, while another 14 consider any attempt to influence public policy to be
lobbying, as long as a certain amount is spent. Thus, such common activities as publishing an open letter, organizing a demonstration or distributing flyers can trigger regulation and force organizers to register with the state and file detailed reports on their activities, as well as the identities of supporters. These regulations raise the costs of political activity and set legal traps for unsuspecting citizens, thus making it more difficult for ordinary citizens to participate in politics—all with little or no benefit to the public. As this report finds:
- Lobbying regulations are not intended to be understood by ordinary people. The first paragraph of Massachusetts’ new lobbying law, for example, scored 0.9 on a 100‐point scale in a readability test. Going by such tests, it would take 34 years of formal education to understand that paragraph; not even a doctorate from MIT or Harvard would be enough.
- The red tape would‐be grassroots lobbyists must navigate to properly disclose activities and financial support is complex and burdensome. In previous
research, ordinary citizens who tried to fill out similar forms correctly completed only about 40 percent of tasks.
- Running afoul of these regulations could bring stiff penalties, including thousands in civil fines and in some states criminal penalties. In New York, the
maximum criminal penalty is $5,000 and four years in jail, equivalent to arson or riot; in Alabama, it is $30,000 and 20 years, equivalent to kidnapping.
- The public likely gains little from these regulations. Previous research suggests few will seek out the disclosed information, but many will be deterred political activity by the public disclosure of their personal information.